FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ELLIOTT GEORGE FLAGGS, JOHN R. HENRY, JR.

BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ. RANDOLPH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., LAMAR AND PIERCE, JJ.

OPINION

Page 414

NATURE OF THE CASE: CRIMINAL - FELONY

WALLER, CHIEF JUSTICE.

¶1. Derrick Montrell Henley appeals the verdict of a Neshoba County Circuit Court jury finding him guilty of possession of burglary tools. We find that the State failed to present sufficient evidence that Rice intended to use the tools in question to aid in the commission of a burglary. Accordingly, we reverse and render Henley's conviction and sentence.

FACTS

¶2. The events of this case occurred at Central Mississippi Recycling in Philadelphia, Mississippi, just after midnight on June 20, 2011. Central Mississippi Recycling consists of a main office building and four other buildings. The property has one main entrance and four secondary entrances. When the business is closed, the main entrance is secured by a " gate" consisting of a metal cable hanging across the driveway. When property manager Gene Luke left the property on June 19, 2011, he made sure that the gate to the main entrance was locked.

¶3. Due to several previous burglaries at Central Mississippi Recycling, the Philadelphia Police Department had increased its patrol of the area. Sometime after midnight on June 20, 2011, Officer Jonathan Dearing was patrolling near Central Mississippi Recycling when he noticed that the gate to the main entrance of the property had been laid on the ground. He pulled onto the property, exited his vehicle, and checked the gate. The cable appeared to have cut marks on it, and the cable clamps for the gate had been loosened, which had caused the cable to fall to the ground. Dearing returned to his vehicle, drove over the cable, and began to investigate the rest of the property. After driving around the property for some time, Dearing observed a vehicle driving with its headlights off around the side of one of the buildings. Upon noticing Dearing, the vehicle turned around, turned its lights on, and started to leave the property. Dearing then initiated his blue lights and stopped the vehicle approximately three

Page 415

hundred yards from the main entrance of the property.

¶4. Dearing approached the vehicle and asked the driver what he was doing on the property. The driver responded that he was looking for a place to turn around. Dearing asked the driver for identification, but the driver had none, explaining that his license had been suspended. The driver then told Dearing that his name was Derrick Henley and gave Dearing his social security number. At that point, Dearing noticed pliers and bolt cutters on the floor of Henley's vehicle. Screwdrivers, wrenches, and a socket set also were found in Henley's car. Dearing asked Henley to exit the vehicle and searched him, finding a flashlight in Henley's pocket.

¶5. Henley was taken into custody and questioned by Lieutenant Dan Refre of the Philadelphia Police Department. Henley denied any involvement in any criminal activity and explained that he was merely turning around in the Central Mississippi Recycling parking lot when he was pulled over.

PROCEDURAL HISTORY

¶6. Henley was indicted for possession of burglary tools in violation of Section 97-17-35 of the Mississippi Code. See Miss. Code Ann. § 97-17-35 (Rev. 2006). His indictment alleged that he " did willfully, unlawfully and feloniously possess tools designed to aid in the commission of a burglary, to-wit: bolt cutters, pliers and a flashlight[.]" A jury trial was held on November 7, 2012, in the Neshoba County Circuit Court. Luke, Dearing, and Refre testified for the State. The bolt cutters and pliers found in Henley's vehicle and the flashlight found on his person were admitted into evidence during the State's case-in-chief. At the conclusion of the State's case-in-chief, Henley moved for a directed verdict, arguing that the State had failed to prove that he had possessed the tools with the intent to commit a burglary. The trial court overruled Henley's motion, and Henley declined to offer any evidence in defense. During closing arguments, Henley's attorney argued that Henley had the tools in his vehicle because he worked as a mechanic and asserted that the bolt cutters showed no signs of use. Henley also requested that the Court give a peremptory instruction, which instructed the jury to find Henley not guilty, but this request was denied.

¶7. The jury returned a unanimous verdict finding Henley guilty of possession of burglary tools, and the court sentenced him to five years' imprisonment. Henley moved for a new trial, but the trial court denied his motion. Henley now appeals to this Court, arguing that the trial court erred in denying Henley's motion for a directed verdict, his request for a peremptory instruction, and his request for a new trial. Because we find that the State's evidence in this case was legally insufficient to secure a guilty verdict, we will ...

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